Re: GNOME Foundation By-laws

[rms39 columbia edu (Russell Steinthal)]

On 01 Mar 2002 15:00:27 EST, Havoc Pennington wrote:

>Appended is a draft of the bylaws for GNOME Foundation, Inc. These
>will probably be discussed, possibly amended slightly, and approved at
>the next board meeting on March 12, unless serious objections are
>raised in the meantime.

First, I'm glad to see these are finally ready!  

A few comments/questions from an interested GNOME hacker/Membership & Elections 
Coordinator/law student. :)  (With regard to the law student part, 
these should obviously all be read as questions to forward to the 
lawyers who actually know and are licensed to practice California 
law.)

1. The Membership Committee

The Membership Committee is referred to at several points in Article 
VI, "Membership."  It does not appear to be defined, however, at any 
point in the Bylaws.  The current scheme, by which its authority is 
delegated by vote of the Directors, doesn't appear to be explicitly 
authorized either.  Is this an oversight, or are the lawyers 
satisfied that it's implicitly permissible?  (For those who are 
following along, it can't be a "committee" under Article IX, since it 
consists of (by design) at least one non-director.)

Related to that, although I think it's a highly unlikely problem to
have to deal with, as a Membership Committee member/chair I wonder if
it might not be desirable to somehow include committee members as an
"agent" within the meaning of Article XI on indemnification.  (If the 
Membership Committee is going to be delegated the power to deny or 
revoke membership, it's always possible we'd be named as parties to a 
suit contesting that decision, and it would be good to be 
indemnified, at least if the directors are going to be.)

2. Action Without Meeting by Written Ballot (Art. VII, Sec. 8)

Are the lawyers satisfied that an e-mailed ballot is included within 
the meaning of a "written ballot" under California law, without 
otherwise including a specific reference (as was done to permit 
e-mailed notice of meetings)?  If not, is the Board proposing to 
alter the current election mechanism?  Or is election of the 
Directors (defined by reference to electionrules.html) separate from 
actions by written ballot?

3. Affiliation rules for Directors (Art. VIII, Sec. 2)

This is actually something which was unclear under the past rules and 
which the Membership Committee had on its list of things to clear up 
before the next election: how are spouses and other "related persons" 
treated by the "affiliate" definition?  Is Telsa, for example, 
treated as a Redhat affiliate by virtue of Alan's employee status?  
(I'd assume no.)  What if Alan is affiliated by means of equity 
stake?  (Does it matter if the property is held jointly or 
individually?)  I really don't have a stake in this either way, but 
this seems like as good a time as any to make it clear, either in the 
Bylaws themselves or in an authoritative interpretation by the Board.

Also, it's not explicit that the affiliation requirement is applied re
peatedly, i.e. if the nominee with the most votes who was not elected
would *also* create an affiliation problem, move to the next most
votes, etc.  That's how I assume everyone would read the document, 
but it might be worth checking if the lawyers agree that it doesn't 
need to be explicit.  (I think that may have been a mistake in the 
original election rules on which the Bylaws were based.)

4. Recall & Referendum 

The recall & referendum provisions of the old Charter appear to have 
been deleted from the Bylaws.  I'm not convinced that's a bad thing, 
but I wonder if it was intentional.  

Possibly related to this, the provision allowing any ten members to
demand a special meeting (Art. VII, Sec. 3) seems far too generous to
me; it's entirely possible that 10 people could seek to "harass" the
Board through that procedure, particularly given the relatively easy
membership requirements.  The proper number is probably somewhere
between the 10 in the bylaws and the 10% in the Charter...

That's all I have offhand, and I'd appreciate hearing that, at least, 
the Board/lawyers considered them and made intentional choices.  
Otherwise, again, I'm glad to see we're moving along.

-Russell
-- 
Russell Steinthal		Columbia Law School, Class of 2002
<rms39 columbia edu>		Columbia College, Class of 1999
<steintr nj org>		UNIX System Administrator, nj.org